The High Court has given its decision in the long-running Heyday litigation. It has held that the UK Government was able to justify the grounds upon which it had introduced a default retirement age of 65.
In 2006 Heyday, a branch of Age Concern, challenged the lawfulness of Regulations 3 and 30 of the Employment Equality (Age Discrimination) Regulations 2006. These Regulations permit employers to lawfully retire employees aged 65 and to justify direct age discrimination. Initially the High Court referred a number of issues to the European Court of Justice (ECJ). The ECJ ruled that the retirement age of 65 was justified provided that:
- the Government had a legitimate aim relating to employment and social policy;
- that aim was objectively and reasonably justified; and
- the means of achieving that aim were appropriate and necessary.
The ECJ left these questions for the national court to determine. The High Court concluded that the default retirement age had the social policy aim of maintaining confidence in the labour market. The use of a default retirement age to give effect to this aim was legitimate and proportionate. The High Court considered that the choice of the age 65 as the default retirement age was a much more difficult question but ultimately it concluded that this was proportionate. However, it commented that it had been influenced by the Government's recent announcement that it would move its review of the default retirement age forward, from 2011 to 2010. It indicated that its decision may have been different had the Government not announced this review and indicated that it could not foresee that 65 could remain as the selected age after the review.
The CBI welcomed the High Court's decision as a victory for common sense. Andrew Harrop, Head of Public Policy at Age Concern, commented that Age Concern would be stepping up its fight and argued that the Equality Bill should be used to overturn the default retirement age in its entirety. Whilst an abolition of the default retirement age appears unlikely, the ruling adds to the pressure on the Government to increase the default retirement age as part of its review next year. In the meantime employers can relax when they apply the default retirement age to dismiss an employee (provided the correct procedure is followed).